N. Ibotombi Singh, J.:- This appeal is preferred by the accused Kuthu Goala alias Bistha Goala, who is convicted under Section 302, Penal Code, for offence of murder of one Lakhinath Karmakar and sentenced to undergo rigorous imprisonment for life.

2-3. The facts of the case giving rise to this appeal may be briefly stated as under :-

On 5-10-74, the Officer-in-Charge of the Bordubi Police Station received a telephonic message from Dibrugarh Police Station that one man appeared at Dibrugarh Police Station with a severed human head. He made entry of the message in the General Diary, Ext. 6 after which he came to the Dibrugarh Police Station and took charge of the accused Kuthu Goala and the severed human head. He also seized a bag by which the severed head was alleged to have been taken by the accused to the Police Station. Thereafter, he proceeded to the Keyhong Tea Estate as led by the accused where he found a dead body with its head severed. He held inquest on the dead body by framing the severed head with the dead body and seized a cycle found near the dead body. On his return to the Police Station, he lodged a report, Ext. 9, stating that the accused attacked and killed the deceased on 4-10-74 while the deceased was coming on cycle to attend to his night duty at Keyhong Tea Garden. He arranged for post-mortem examination of the dead body. The accused made. the alleged confession, and his confession was recorded by a Magistrate, 2nd Class, who was specially empowered to record confession. A Medical Officer held autopsy on the dead body. On completion of the investigation, the Investigating Officer submitted a charge-sheet against the accused to stand his trial for an offence of murder punishable under Section 302, Penal Code.

4. The accused was tried by the learned Sessions Judge, Dibrugarh and Lakhimpur District at Dibrugarh. Pleading not guilty to the charge, the accused retracted the confession. The learned Sessions Judge found him guilty of the offence of murder with which he was charged. Hence, this appeal.

5. The conviction of the accused rests on his (i) judicial confession, Ext. 1, (ii) conduct of the accused by his surrender to the police station with a severed human head, in a bag, and (iii) the alleged statement of the accused to the police, P.W. 5, leading to the discovery of the dead body with its head severed from near the road within the Keyhong Tea Garden.

6. The Medical Officer, Dr. N.G. Pegu, who held the autopsy on the dead body found the following injuries :

(i) "Head was found cut of at the neck at the level of the 3rd cervical vertebra with two overlapping oblique cut wounds at the back of the neck, one at hair margin end one at one inch below cutting completely through the 3rd cervical vertebra, spinal cord, vessels and muscles, trachea and aesophagus.

(ii) One cut wound 1" X ½" X scalp deep over the forehead right side.

(iii) One cut wound 1'' X ½" X skin deep near the left nostril.

(iv) One cut wound 2½" X 1" X bone deep over the left jaw, blood cloth present."

7. The Medical Officer opined that the injured died instantaneously due to shock and haemorrhage as a result of the severance of the head from the trunk by cutting at the neck. The deed body was identified to be that of the deceased by the Head Constable and also by the father of the deceased. It is proved beyond doubt that death was due to unlawful violence or criminal negligence. The only question for our determination is as to whether the accused is responsible for the murder of the deceased.

8. In this case the report, Ext. 9, cannot be treated as F.I.R., nor is the entry in the General Diary can be treated as F.I.R. as the Officer of the Dibrugarh Police Station who was said to have sent the telephonic message has not been examined to confirm the message.

9. As the conviction is based on the retracted confession which is said to have been corroborated by the two pieces of circumstantial evidence mentioned above, it is necessary to examine a